Opinion
NO. 09-12-00213-CV
09-27-2012
HEALTHSOUTH OF HOUSTON, INC. D/B/A HEALTHSOUTH REHABILITATION HOSPITAL OF NORTH HOUSTON, Appellant v. WILMA V. PARKS, INDIVIDUALLY AND AS THE INDEPENDENT EXECUTRIX OF THE ESTATE OF FRANK S. PARKS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 09-12-11980 CV
MEMORANDUM OPINION
This interlocutory appeal concerns the denial of a health care provider's motion to dismiss a health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b), (c) (West 2011). We hold the trial court did not abuse its discretion by denying the motion to dismiss; therefore, we affirm the trial court's order.
This suit arises from a health care liability claim that was filed by Wilma Parks, individually and as the executrix of the Estate of Frank S. Parks. We addressed several issues raised by HealthSouth of Houston, Inc., d/b/a HealthSouth Rehabilitation Hospital of North Houston concerning the adequacy of an expert report filed to comply with the Medical Liability Act in a prior appeal. See HealthSouth of Houston, Inc. v. Parks, 329 S.W.3d 885 (Tex. App.—Beaumont 2010, pet. denied). In the prior appeal, we held a nurse was not qualified to author a report explaining how the health care provider's negligence caused Frank's death. Id. at 890 (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.403 (West 2011)). Also in the prior appeal, we rejected HealthSouth's argument that the trial court abused its discretion by refusing to dismiss the case; instead, we remanded the case to the trial court to consider giving Wilma additional time to file reports that complied with the Medical Liability Act. Id. at 890-93.
On remand, the trial court gave Wilma additional time to file additional expert reports. Within that time, Wilma served HealthSouth with the report and curriculum vitae of Dr. Nhue Ho. HealthSouth objected to Dr. Ho's report and asked the trial court to dismiss the suit with prejudice. The trial court found the reports complied with the requirements of the statute and denied HealthSouth's motion to dismiss.
In this appeal, HealthSouth contends that because a nurse is not qualified under the provisions of section 74.403 as an expert on the issue of causation, the trial court could not give Wilma additional time to file expert reports. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(c), 74.403 (West 2011). We rejected this argument in HealthSouth's last appeal. See Parks, 329 S.W.3d at 890.
HealthSouth suggests that a Texas Supreme Court case decided since its initial appeal affects our analysis. That case, Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011), held "a thirty-day extension to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated." Scoresby held that "[a]ll deficiencies, whether in the expert's opinions or qualifications, are subject to being cured" before the appellate court reviews the trial court's refusal to dismiss the case. Id. However, the issues addressed by the Supreme Court in Scoresby did not concern a situation like the one presented here, where the non-compliant report was authored by a person not within the class of persons allowed to express opinions on what caused the patient's damages.
HealthSouth argues Nurse Stinson is not "an individual with expertise" because only a physician may render an opinion regarding medical causation. See Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a). Nevertheless, a nurse may render an opinion on the standard of care and breach in a health care liability case concerning negligence in providing nursing care. Christian Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 644-45 (Tex. App.—Dallas 2010, pet. denied). When expert reports in a medical liability case are deemed deficient, the trial court may allow the deficiency to be cured through reports authored by new experts. In re Buster, 275 S.W.3d 475, 476-77 (Tex. 2008). Scoresby did not alter the established precedent permitting a report by an unqualified expert to be cured by substituting a report by a different expert. Scoresby, 346 S.W.3d at 557; Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 670 (Tex. 2008). Instead, in Scoresby, the Texas Supreme Court stated: "All deficiencies, whether in the expert's opinions or qualifications, are subject to being cured before an appeal may be taken from the trial court's refusal to dismiss the case." Scoresby, 346 S.W.3d at 557.
Wilma submitted a report from a nurse indicating that Wilma's claim, which related to the medical treatment that Frank had received, had merit; the report from the nurse also implicated HealthSouth's conduct. Parks, 329 S.W.3d at 887-90. The trial court did not abuse its discretion by allowing Wilma to file an additional report from a physician to address causation. See In re Buster, 275 S.W.3d at 477. We overrule issue one.
In issue two, HealthSouth asserts the trial court abused its discretion by denying its motion to dismiss, in which it challenged the adequacy of Dr. Ho's and Nurse Stinson's reports. We apply an abuse of discretion standard to review the trial court's decision on the adequacy of expert reports that are filed in health care liability claims. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). The report must provide "a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the . . . health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
HealthSouth contends the reports before the trial court were inadequate because they are too conclusory. After our remand of the prior appeal, Wilma filed a report from a physician, Dr. Ho, who is board certified in the field of internal medicine. Dr. Ho's report states that Frank, on admission to Health South, "was noted to need strict fall precautions." According to Dr. Ho, the standard of care that applied to HealthSouth required that it not leave Frank unattended. According to Dr. Ho, HealthSouth left Frank alone and he had a fall, "which is a violation of the standard of care."
Nurse Stinson's report also contains details regarding HealthSouth's alleged departure from the standards of nursing care required to prevent patients from falling. We conclude that the expert reports before the trial court adequately explain the care that Frank required but was alleged not to have received. See Palacios, 46 S.W.3d at 880.
HealthSouth also argues that Dr. Ho's report fails to provide a fair summary of the causal relationship between the breach of the standard of care and Frank's fall. Dr. Ho's report states that "[i]n the fall, [Frank] sustained a severe blow to the head, which caused a contusion and a closed head injury. The head contusion and closed head injury caused by the fall were substantial factors in [Frank] not regaining his functions after the fall— all of which was a readily foreseeable consequence of not following mandated fall precautions." Dr. Ho's report then traces the head injury caused by the fall to several further complications, including Frank's severe dehydration and his ultimate death. We conclude that the trial court did not abuse its discretion in deciding that the expert report before it provides an adequate factual basis linking HealthSouth's breach to Frank's injuries; we also conclude Dr. Ho's report adequately explains how the departures from the standards allegedly caused Frank's injuries and resulting death. See Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010).
HealthSouth also contends Dr. Ho's report is deficient because it fails to explain the medical basis or reasoning for his conclusion that Frank's subsequent medical conditions and death would not have occurred if proper safety measures and attendance had been provided. See Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.) (holding a mere assertion that the patient would have survived is conclusory and not sufficient). Dr. Ho states that Frank suffered a severe blow which caused a head contusion and a closed head injury that were substantial factors in his not regaining his functions after the fall. According to Dr. Ho, the fall caused Frank to have traumatic CNS Encephalopathy from which he never recovered. Dr. Ho states that Frank became clinically depressed due to his inability to recover from the fall, and consequently he quit eating and progressively got worse. According to Dr, Ho, "[a]s a direct result of the medical complications related to the fall, [Frank] became clinically depressed. Once the depression set in, [Frank] continued to be malnourished and became oliguric from severe dehydration. It was this progression of symptoms, caused by the fall at Healthsouth, that resulted in [Frank's] failure to thrive and ultimate death."
Dr. Ho's report traces a causal chain of events starting with Frank's fall while he was in HealthSouth's care. According to Dr. Ho's report, the progression of Frank's symptoms were caused by his fall at HealthSouth, and resulted in his ultimate death. The trial court could reasonably conclude that the medical basis for Dr. Ho's opinions are adequately spelled out in his report.
We hold the reports at issue were adequate to inform HealthSouth of the specific conduct called into question. See Scoresby, 346 S.W.3d at 556; Palacios, 46 S.W.3d at 879. We also hold the reports provide a sufficient basis for the trial court's conclusion that Wilma's claims have merit. See id. We overrule issue two and affirm the trial court's order denying the motion to dismiss.
AFFIRMED.
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HOLLIS HORTON
Justice
Before Gaultney, Kreger, and Horton, JJ.